NGOs on Libraries and Archives July 25, 2012 at SCCR24

Libraries, public interest and other NGOs intervention followed the governments discussions on the topics for libraries and archives:

>> CHAIR: … Strictly three minutes.

>> IFLA: Thank you, Mr. Chairman I’m speaking on behalf of the international federation of libraries associations we fully support this committee sending a recommendation to the General Assembly this year to convene a diplomatic conference for the visually impaired with regard to discussion on the text for this instrument we would like to remind you libraries have worked very long time with the visually impaired and print disabled people and we are the main providers of these services to them IFLA maintains that libraries should specifically be included in the definition of authorized entities since we are absolutely integral to the provision of accessible material by blind and print disabled people.
Secondly, if the committee elects to have record keeping safe marks in the instrument these should be drafted as flexibly as possible so they can reflect national laws that best reflect the local institutions at the very least Article D3 from proposals for revised text for Document SCCR/23/7 allowing rights holders to request anonymous aggregated data on copies and treating authorized users and libraries with suspicion should be deleted.
We thank all Member States for their contributions, proposals and comments contained in SCCR/23/8. In particular we are especially grateful for the contributions from the African Group, Brazil, Ecuador, India, the United States and Uruguay. We note with appreciation that the document covers a broad range of issues that are essential to the functioning of libraries and archives in the Digital Age.
IFLA reminds delegates that we are seeking an instrument that will provide basic minimum international standards for limitations and exceptions for libraries and archives providing flexibility to Member States to enact provision in their laws that meet or exceed these minimum standards. The scope of interpretation of the three steps — Three-Step Test should not be constrained by an unduly narrow or restrictive approach. In our view and reflected in the max plank declaration the Three-Step Test does not only take into account the interest of the rights holders but involves consideration of the collective public interests. These values are fundamental to the consideration of the Three-Step Test and I quote: The public interest is served when the inevitable tendency of Copyright Law to restrict competition through the grant of exclusive rights is no greater than necessary.
We support advancement on all four topics before this committee and we look for a Work Plan that recognizes the different level of maturity of the topics. Libraries and archives have been scheduled for two half days this SCCR. We understand that other issues are high on agenda and we want a resolution on TVI we seek a Work Plan for libraries and archives that will take us forward for the next two years it’s important to allocate sufficient time to consider each issue and to fully discuss libraries and archives and the other proposals.
Given the adjustments made to the scheduling at this meeting and given the high level of maturity of libraries and archives illustrated in the proposals made by some Member States contained in SCCR/23/8, we urge delegates to set aside and safeguard substantive time at SCCR 25 to discuss libraries and archives. Thank you, Mr. Chairman.

>> Thank you. Thank you, Mr. Chairman. I’m experiencing on behalf of Electronic Information for Libraries firstly I would like to commend the Secretariat for providing live webcast and transcription for this meeting we appreciate the openness and transparency this brings to the committee proceedings. We thank the committee for the adoption of SCCR/23/8 we believe is a good basis for moving forward on all of the topics. I will comment briefly on two important issues that arose in the discussions last week. The first is the relationship between Exceptions and Limitations and delivery of local content strong Exceptions and Limitations benefit the creation and dissemination of local content without jeopardizing the incentive to create. Here are two examples a university library that provides lawful reproduction for students and academics quips the next generation for innovation, creativity and leadership.
A work preserved by the national library becomes part of the national heritage for future scholars and citizens who can rediscover resources that would otherwise be lost.
We strongly believe that Exceptions and Limitations are good for local research, local creativity, local innovation and development.
The second issue relates to the Three-Step Test. The applicability or otherwise of the Three-Step Test in the different treaties to different rights and different exceptions plus varying interpretations of it’s meaning are a growing source of confusion and uncertainty we would ask the khe to provide guidance on this complex topic to help advance the thinking of the current role and function of the Three-Step Test it’s scope and application as well as limitations on it’s use this guidance would be very helpful and provide confidence of what is possible in the copyright system.
And finally I will comment on the negotiations for a treaty for blind and visually impaired people. Mr. Chairman we reject any assertion that would use libraries and archives as a reason not to advance a treaty. Every issue should be discussed, evaluated and stand on it’s own merits.
It would be a tragedy if the copyright system were to freeze up in the face of change or through fear of new precedence when all around us change is happening through technological developments, new business models and judicial decisions such as that of Canada Supreme Court that fair dealing is a user’s right as stated by the Distinguished Delegate of Brazil TVI is a human rights issue without an issue to business interests and the famous remark by Victor Hugo in 1878 is pertinent and I quote: If one of these two rights the rights of the writer and the right of humankind had to be sacrificed it would of course be that of the writer because the public interest is our sole concern and humankind I declare must come before us writers.
So in this spirit we ask you Distinguished Delegates to demonstrate your commitment to the human rights of print disabled people around the world by endorsing a treaty proposal at this meeting. Thank you for your attention.

>> KEI: Thank you very much I would like to start off by saying that we agree with the comments the United States made that it would be a good idea to identify within the many different things that have been proposed in terms of the textual negotiations a smaller set of areas that are — would receive in the short run more attention just because I think it’s hard to talk about everything all at once and I think that that would — you know that would get us further along in seeing to what extent people can reach a consensus on particular issues that have to come I think that would be a great confidence building and instructive thing.
And I notice that U.S. was listed in catalog in some areas they thought might fit that category and try to identify things they heard from the African Group in that area. We have very much an open mind in this area. I certainly think that discussions along that line would be productive here. Also toward reaching conclusions at the end.
Switching to a different topic, I think that it’s important to in general — and this is not related to any particular provision but to avoid the mistakes of the Berne appendix as these negotiations unfold which is to say the Berne appendix, which was one of the worst parts of the copyright system was — failed because it introduced a lot of burdensome and complicated and restrictive procedures on things. And I’m not saying that the current proposals by the African Group do that. On the contrary I don’t think they do but I know in watching what’s happened in the treaty for the blind issue, I think there’s a risk that will come up in these discussions and I hope it doesn’t.
Finally on the issue of the — of cross-border exchange I think that is a topic that’s technically interesting and important to everyone and it plays out definitely with libraries and some other things because they do a lot of things like interagency loans and things like that where there’s no prices involved. Usually libraries lend out for can — lend out things for free to their own patrons. In a Digital Age it’s complicated. So that seems like a really important thing that the African Group identified. And I note that the libraries one of the reasons for having international norms is to deal with cross-border issues to the extent that could be touched in some ways I think it’s really ambitious but I think there’s a big payoff if you get it right. And on the issue of parallel trade I would say we recently filed a brief in the United States Supreme Court on this topic where we said in the area of textbooks and books and libraries and things like that we felt there were some areas for restrictions on parallel trade. Between low income countries and high income countries. I think our general feeling was Developing Countries should be able to engage in global parallel trade and copyrighted goods but there should be barriers between parallel trade that go from Developing Countries and high-income countries in order to protect differential pricing in countries we feel the same way about pharmaceutical drugs we feel if they are cheaper in the Developing Countries they shouldn’t be placed in the market in the United States through parallel trade that’s an exception that we have toward a general group we tend to make an exception and some copyrighted goods where we think differential is important for countries of different incomes. But for low-income countries we think that the most robust — most robust parallel trade is in their interests. Thank you very much.

>> CIA: Thank you, Mr. Chairman. The international Council on archives is grateful for the opportunity to address the committee. I represent the body that it itself represents archives throughout the world. We are working closely with our library colleagues to help this, this committee, to work towards a draft or instrument on Exceptions and Limitations to copyright to assist non-profit libraries and archives to provide a high-quality public service.
The international Council recognizes the vital importance and fast progress for an instrument for the visually impaired and welcomes the attention that’s been devoted to it we look forward now to seeing in the conclusions of this meeting a renewed commitment to a timetable for taking forward work on a draft instrument in favor of libraries and archives which is well advanced.
Archives can be said to exist for two primary and closely related purposes to preserve the largely unpublished records of the past so they may be studied and used by their creators in the public now and in the future.
Libraries and archives are strong supporters of copyright recognizing it’s a central role for creators and to the economies of the world however copyright can inhibit archives in performing their essential public functions even though few copyright works and archives have any significant commercial value and few were created with the expectations of exploitation by the copyright owner.
Many unpublished documents and archival collections are still in copyright and permission is needed merely to make a copy in order to preserve a fragile paper or electronic document in a new format copies are also needed by readers to enable them to continue their studies elsewhere and to compare sources.
Permission can be impossible to obtain. Since information about the owners of copyright in archival materials is rarely available.
The international Council on archives hopes that work on an instrument for the visually impaired will soon reach a successful conclusion and that progress can then be made on the remainder of the Exceptions and Limitations agenda. Thank you, Mr. Chair.

>> LCA: The Library Copyright Alliance expresses appreciation to Member States for your thoughtful discussions regarding limitations and exceptions for these three broad areas that affect the daily work of libraries, DVI, libraries and education.
We strongly oppose language in the proposed text for Article D of SCCR/23/7 regarding the provision of aggregated data to rights holders it would invite publishers to second-guess the procedures of libraries as authorized entities to challenge the quality and quantity of the records kept or the appropriateness of transactions and to threaten litigation when they see an increase. These record keeping and reporting activities involve significant costs better spent on the provision of services compliance may impose such a burden that many libraries will decide not to provide services to print disabled patrons there’s no evidence that authorized entities anywhere that exceptions have existed have abused those exceptions so there’s no justification for the added administrative burden. Furthermore with current technology there’s no such thing as anonymous aggregate data several major privacy breaches occurred because people were able to reverse engineer the aggregated data to find out personally identifiable information this threatens the privacy of visually impaired. Record keeping is a formality one must engage in before benefiting from exception but this is unfair to users if under Berne there are no form amounts for owners there shouldn’t be formalities for users the language would set a terrible precedent for other exceptions for lishs and other institutions publishers would seek this right to data in connection for every exception the Library Copyright Alliance is grateful for the critical topics addressed in SCCR/23/8 regarding limitations and exceptions for libraries and archives we believe the following issues should be emphasized: The right of libraries to lend works and the exhaustion of the distribution right upon the first sale of a copy regardless of country of manufacture. Cross-border uses by interlibrary loan by libraries in different countries the use of orphan works by libraries, broad library exceptions to prohibitions on the circumvention on the technological protection measures for educational use and dooiming preservation and library exceptions surviving contractual restrictions we encourage Member States to continue to move forward in their consideration of this working document. We support instruments that will guide Member States in formulating national legislation that will expand the array of available copyright limitations and exceptions globally. Thank you.

>> CCIA: Thank you, Mr. Chairman. The computer and communications Industry Association welcomes the work of the SCCR in this important subject area and we’re encouraged by the many proposals which exhibit a high level of engagement by countries worldwide. Ensuring that a balance exists in copyright as a — is a public policy goal we all share a key part of realising that goal is a balance of rights and flexibilities especially in the Digital Age. This discussion seeks to develop a more balanced system which all stakeholders should welcome. We certainly do.
Mr. Chairman, those who remember the initial proposals for discussing limitations and exceptions presented by amongst others Chile will recall that part of the rationale the proponents gave is a group of countries in Latin America tried to create a shared educational portal online and found their legal regimes in combination made it impossible to do ensuring that safe harbor provisions are a part of any international agreement to facilitate legal access to information is essential to making that kind of portal available.
Afterall, if you create a regime which grants users access but doesn’t produce legal certainty for those who responsibly facilitate that access, have you really helped anyone? We’re therefore surprised by interventions of the United States and the European Commission objecting to the language proposed by Nigeria on Internet intermediary safe harbors from our review of the language proposed it’s clearly logical and tailors specifically to the subject area in fact safe harbors are essential to make access envisage the to beneficiaries in the digital environment we find the U.S. — we find this perplex since it’s congruent with the legal regimes of both of them. Mr. Chairman the empirical evidence is overwhelming if you want to have a vibrant Internet with rich services of all kinds with all of the economic development and opportunity for improvements, commerce and social development that they bring, safe harbors for spwed immediate release who make access to information possible are an absolutely indispensable foundation upon which to build an enabling environment it’s not accident that you see concentrations of the Internet economy and innovation in those countries where you see strong safe harbor regimes. Finally with respect to the proposal to focus on a couple of issues we suggest that the ultimate result of these discussions should be holistic and sustainable and endorse the comments of IFLA in regard for a work programme and reiterate our support for a clear statement from this house as an outcome of this meeting to prioritize the needs of the visually impaired. Thank you.

>> CIS: Thank you, Mr. Chair. We would like to associate ourselves with the statements made by IFLA, KEI, CIA, CCIA and the CLA and IFRRO the centre for Internet stoet would like to commend this house for adopting SCCR/23/8 as a working document on the exceptions on libraries and archives this issue is of paramount interest the world over and particularly in Developing Countries. I would like to limit my oral interventions to two quick points and will send in a longer statement via e-mail.
First, we feel that this committee should pay special attention to ensuring that digital works and online libraries and archives such as the Internet archive also receive the same protection as brick and mortar libraries. Second, we are concerned that we have been seeing some — we have been seeing some delegations advancing a very narrow interpretation of the Three-Step Test. Such a narrow interpretation is not supported by leading academics nor by practices of Member States.
A narrow interpretation of the Three-Step Test must be squarely rejected. In particular I would like to associate CIS with the strong statements made by IFLA and KEI to maintain flexibilities within Exceptions and Limitations instead of overly prescriptive provisions incumbered by weighty procedures and specifications.
We have comments on parallel trade, as well, drawing from Indian experience but I’ll send those in by writing.
Lastly, I’ll note that libraries and archives enhance the value of the copyrighted works that they preserve and provide to the general public. They do not erode it.
Exceptions and Limitations that help libraries and archives actually help copyright holders. The sooner copyright holders try not to muzzle libraries and archives, especially when it comes to out-of-commerce works, electronic copies of works and in Developing Countries, the better it will be for them, their commercial interests as well as the global public interest. Thank you.

>> CLA: Thank you, Mr. Chairman. The Canadian library association notes the progress which has been made in advancing deliberations on establishing basic minimum standards for limitations and exceptions in the areas as laid out in the SCCR schedule while recognizing that during the deliberations the issues relating to the visually impaired and print disabled libraries and archives and education and other disabilities can become intertwined, it remains the belief of CLA that they are most properly addressed in separate treaty instruments in their order of maturity. While sufficient time should be allocated in each area to advance deliberations, it is important that there be agreement at this SCCR on a recommendation to the General Assembly on a treaty instrument for TVI.
Last week it was stated that fair dealing and fair use are mere defenses against alleged infringing activity. I remind the delegates of the ruling of Canada’s Supreme Court in 2004. In a unanimous decision the court found that and I quote: The fair dealing exception like other exceptions in the Copyright Act is a users right in order to maintain the proper balance between the rights of a copyright owner and users interests it must not be interpreted restrictively CLA believes that the July 21st proposals text for Document SCCR/23/7 bring delegates closer to an acceptable consensus on TVI. We note one area of concern for CLA the delegation of authorized entity must acknowledge the important role currently played by libraries in a number of jurisdictions providing alternative format content to our visually impaired and print disabled users. In conclusion while eagerly awaiting the deliberations on limitations and exceptions on Latin America CLA urges delegates to move now on a recommendation on a treaty instrument for the print disabled. Millions of visually impaired and print disabled individuals spread across all of the nations represented here today await formal WIPO recognition of their basic human right to equal access to the world’s print heritage. Thank you, Mr. Chair.

Collection societies, Publishers and other right owners: IFRO, STM, IPA and MPA

>> IFRO: Thank you, Mr. Chair for giving the floor to IFRO. We acknowledge our countries where appropriate exceptions may be required to perform duties legally to support such Exceptions and Limitations in national legislation many WIPO states also include such Exceptions and Limitations in the laws libraries should be able to lipped out formats after the lending period. Rights holders should have the right to receive some remuneration for such lending we note a 54 countries possibly more have adopted public lending library schemes in the legislation libraries should also be enabled to provide access to their users to works in their collections with permission and under license from the rights holders or their representatives such as reproduction rights organisations. The same principle based on the permission and the license with the rights holders or their representatives should apply to cross-border users any international document delivery of copyright works should be conducted with the permission of the rights holders in the country of supply or their authorized representatives in the country of supply or reception or if performed under any exception complying with the Three-Step Test of legislation in the country of supply or reception or both countries then the countries agreed to and accepted by the rights holders or authorized representatives in both countries. The reproduction and making available of orphan and out of commerce works is best handled when voluntary stakeholder initiatives including licensing arrangements set a point of departure for it. Solutions to enable the digitalization and making available of open works and out of commerce works required a country specific approach considering national legal and other traditions this is best achieved when stakeholders are offered the opportunity to establish the premises for it. We refer to the Memorandum of Understanding on the digitalization and making available of out of commerce works through collective licensing which associations representing libraries, authors, publishers ROOs and IFRO have signed in Europe also the sake stakeholders in Europe have jointly and voluntarily developed such as modelling agreements mechanisms for one stop shops by collective management on the arrow system which reduce time effort and costs in identifying the rights status and rights holders by 95% in comparison to traditional research. Regarding technical protection measures the reference points would be the established WIPO Copyright Treaty and WIPO performances and phono grams treaty. Thank you.

>> STM: Thank you, Chair. STM would like to express it’s support for the Berne Convention Three-Step Test for flexibility in national legislation and for licensing solutions in the context of discussing possible exceptions for libraries and archives this does not mean STM is not supportive of certain Exceptions and Limitations. In all cases where are publishers accept the principle of exceptions, the terms must be clearly specified and specific terms may be required to ensure that the exceptions are applied in the spirit of the Three-Step Test. Publishers are prepared to discuss such details when specific solutions are sought in the context of special national circumstances. And here I would support and comment on the interventions of a number of Distinguished Delegations and a number of previous speakers that say it’s important to focus on specific problem areas with sufficient factual underpinning to arrive at mutually acceptable and sustainable solutions. That is perhaps a level of specificity so far not reached and more work is in STM’s view is needed to arrive at that level of specificity.
Scientific and technical publishers operate in one of the most dynamic and innovative fields combining literary works and Information Technology. Publishing includes all steps that bring an author’s manuscript into book form, peer reviewed into an e-book form and so on.
All of this is enabled through a copyright system that allows for the editorial production, discovery and delivery of content. At the forefront of this electronic revolution, STM publishers have enabled and shaped the information networks as they exist today and they continue to innovate and shape.
Currently licensing partners are sometimes consortia of libraries of research organisations. Access is provided to entire regions or even on a country basis.
The e-book market is growing and developing into various models of purchasing and lending. In this context carefully crafted exceptions are a must to avoid preempting the future.
The Three-Step Test has historically allowed a balanced approach and we still believe that national problems are not sufficiently uniform to be tackled always in exactly the same way. We therefore, think that flexibility in whatever instrument might be considered is vital.
The public interest of access to information, research and education is best served by encouraging the creation of new publications, information services with these audiences in mind. It is second best to provide only for exceptions to existing and pre-existing materials.
STM reserves the right to make specific comments once individual topics or clusters earmarked for further work are known. Thank you very much.

>> IPA: Good morning, Mr. Chairman. Thank you for giving the International Publishers Association the floor. I will restrict my comments only to the issue of how we should progress on the issues surrounding libraries and archives.
The delegate of Kenya made a very good description of the relationship between rights holders and publishers. It is not a hostile relationship. It is actually a very close relationship and often a partnership.
Libraries are the most important customers for many publishers and in many regions for all publishers.
We should take — keep that in mind when we approach the 11 topics now before us on libraries and archives. We should also remind ourselves as the U.S. delegate did of why we were able to make such great progress in the area of print disability.
In print disability we had several issues which came together. Firstly the creation of special files at great expense for the organisations in question. Secondly, the lack of an international exchange of such files. And therefore, thirdly, a duplication of effort which we all agreed was unwarranted.
Not all of the 11 topics that we are discussing on libraries and archives are under the same constellation. Some of the topics actually affect the business relationship between libraries and rights holders. This committee in discussing them would actually be discussing an aspect of a very normal partnership which is evolving as the digital environment evolves. Instead, therefore, this committee should focus on topics which are not part of an existing library publisher relationship.
In doing so we should keep two things in mind. Firstly, that the public interest is on both sides, both in the interest in showing that the libraries can serve their purpose but also in ensuring that rights holders can provide their content to libraries. Secondly each of these topics should start with an intensive information sharing and an intensive evidence-based discussion about what the issues are and where the problems lie and where the problem with access lie and what the cause of that is. We will surely find that not everywhere the problem is copyright and certainly not everywhere the problem — the solution are copyright exceptions. Thank you very much.

>> MPA: Thank you, Mr. Chairman. For the opportunity to take the floor on behalf of motion picture association.
As we have stated previously, we support a balanced and workable system of copyright including not only strong exclusive rights but also Exceptions and Limitations for libraries and archives. MPA member companies have agreements with film archives around the world and we recognize in particular the importance of film preservation it’s in the interest of the general public and the film sector.
— regarding the use of TPMs, technological protection measures which are driving the use of new business models in the interests of consumers people have invented measures to introduce exceptions in technological measures moreover we have the recent example of the Beijing treaty this committee’s work needs to be realistic focused narrow and clear. As it considers issues that arise in the context of Exceptions and Limitations in this area we need to remember that digital exceptions don’t exist in a vacuum. There need to be digital rights in place, as well. The process must be informed by and must respect the international copyright framework including, yes, the Three-Step Test. This framework as has been mentioned already provides the flexibility to introduce a wide range of exceptions and also encourages licensing solutions the fact there were different interpretations of the Three-Step Test around the world is evidence of that flexibility. That flexibility needs to be preserved in recognition of the diversity in this house.
With respect to ISP privileges sometimes referred to also as safe harbors also come responsibilities to address illegal activity online. Indeed, the U.S. and European legal regimes also recognize this point. Copyright is in the public interest and is a fundamental right. It provides the incentive for the financing creation and dissemination of the works to which libraries and archives seek access and in which they do indeed play such an important role.
That incentive must be, also, preserved. And yes, thank you,